Supreme Court decides gross negligence case by order

The Supreme Court of Virginia heard arguments in October in two cases in – Halsey v. Grafton Schools, Record No. 080023, and Zapata v. Community Alternatives Inc., Record No. 072477 – in which trial judges dismissed wrongful death cases involving charities.

The court reversed and remanded Halsey today by unpublished order. With Justice Cynthia D. Kinser dissenting, the court said Winchester Circuit Judge John E. Wetsel Jr. erred in ruling that the plaintiff had not alleged gross negligence “because reasonable minds could differ on whether the facts, as alleged, amounted to gross negligence.”

The three-page order said nothing about those facts. Six employees of the school, which serves youth and adults with severe behavioral disorders, restrained an autistic, mentally retarded 13-year-old, who became violent in December 2004. The youth died from injuries sustained in the incident.

There was no mention of Zapata, a case from Norfolk in which the plaintiff alleged that a residential care agency there failed to monitor the medication and treatment of a 51-year-old man with the development of a 5-year-old at a summer camp in the Blue Ridge Mountains. The man died at the camp, which was also named as a defendant.

The trial judge dismissed the case on the pleadings after finding that an allegation of simple negligence was not a basis for recovery against a charity. The plaintiff contended that the judge should have considered an allegation of willful and wanton conduct as raising the issue of gross negligence.